Ohio State wants fired band director’s lawsuit tossed

In this Sept. 7, 2013, file photo, Ohio State University marching band director Jonathan Waters leads the band in "Carmen Ohio" following a NCAA football game against San Diego State at Ohio Stadium in Columbus, Ohio. (Adam Cairns/The Columbus Dispatch via AP)(Photo: AP)

COLUMBUS – Ohio State University’s fired marching band director has no legal grounds to proceed with his defamation suit, lawyers for the university argued.

In a Thursday motion, the university seeks the dismissal of Jonathan Waters’ case before the Ohio Court of Claims. Waters was fired last July after an internal investigation determined he ignored a “sexualized culture” within what’s known to fans as The Best Damn Band in the Land.

University attorneys argued most of the investigative report’s lurid details weren’t about Waters.

Waters, they wrote, is trying to “convert the Title IX investigation’s findings about the band’s culture into findings about him. In point of fact, however, most of the findings about which he complains are about the Band’s culture, and not him.”

More importantly, lawyers said, is that Waters acknowledges “the university’s conclusions about the band were true.”

Waters’ attorney, David Axelrod, noted that the U.S. Department of Education closed its four-year investigation into the university’s handling of sexual abuse allegations just weeks after Waters was fired.

“Of course OSU wants the lawsuit dismissed,” he said. “They want nothing more than to sweep their poor decisions under the rug. They’ve used Jon as a scapegoat to escape the Department of Education’s Title IX investigation.”

In the brief, Ohio State cites among reasons Waters has no grounds for his defamation claims a federal judge’s April ruling in a separate civil rights suit that the university didn’t violate his due process rights. Waters’ discrimination claim in that case is proceeding.

“While Mr. Waters agrees with Ohio State that the band’s culture needed fixing, he and Ohio State disagree about who was the right person to fix it,” attorneys wrote. “During the media campaign he conducted after his termination, Mr. Waters claimed he was that person. This is both ironic and significant.”

Ironic, they wrote, because the culture “flourished” while he ran the band, and significant because it constitutes an admission that the band’s culture was inappropriate.

University President Michael Drake released the band culture report at the same time he announced Waters’ firing.

The firing came as a surprise to many. At the time, Waters’ half-time shows were considered revolutionary. The morphing and dancing scenes designed on iPads garnered hundreds of thousands of hits on YouTube and landed the already celebrated band in an Apple commercial.

Waters has argued that his reputation was inextricably tied to the scandalous nature of the report, which detailed a litany of sexually suggestive and profane band rituals and traditions. He said he is now unable to get a job in his field.